Romance Culture (M) Sdn Bhd Jabatan Peguam Negara

BA-25-19-04/2021 Kand. 14 27/05/2022 09:03:30 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA PERMOHONAN SEMAKAN KEHAKIMAN NO.: BA-25-19-04/2021 Dalam perkara permohonan oleh Romance Culture (M) Sdn Bhd (724335- M) untuk mendapatkan kebenaran untuk suatu Perintah deklarasi dan/atau certiorari Dan Dalam perkara Award Tribunal Tuntutan Pengguna Di Putrajaya Wilayah Persekutuan Malaysia dalam Tuntutan No: TTPM-WPPJ-(P)-882-2-19 dan Awd No. TTPM-WPPJ-(P)-882-2019 bertarikh 10.12.2019 Dan Dalam perkara Seksyen 112 dan 114 Akta Perlindungan 1999 Dan Dalam perkara Permohonan untuk Pertintah Certiorari di bawah Aturan 53 Kaedah (2)(1), (2)(2), dan (2)(4) Kaedah- Kaedah Mahkamah 2012 Dan Dalam perkara Aturan 92 Kaedah 4 Kaedah-Kaedah Mahkamah 2012 Dan 1 S/NBA-25-19-04/2021 lgxeqwUSxEumFyw/Gc4EHQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Dalam perkara Permohonan untuk Perintah Perlanjutan Masa di bawah Aturan 53 Kaedah 3(1), 3(2), 3(3), 3(7) dan 3(8) Kaedah-Kaedah Mahkamah 2012 Dan Dalam perkara Akta Relif Spesifik 1950 ANTARA ROMANCE CULTURE (M) SDN. BHD. (No. Syarikat: 724335-M) …PEMOHON DAN 1. PRESIDEN TRIBUNAL TUNTUTAN PENGGUNA MALAYSIA 2. WONG QIN YI (No. K/P: 900716-14-5752) …RESPONDEN-RESPONDEN JUDGEMENT [1] This is an application for extension of time to file an application for leave for judicial review. This court dismissed this application for extension of time to file an application for leave for judicial review. [2] This is the grounds for this court’s decision. 2 S/NBA-25-19-04/2021 lgxeqwUSxEumFyw/Gc4EHQ **Note : Serial number will be used to verify the originality of this document via eFILING portal Brief Facts [3] The Consumer Claims Tribunal’s award was delivered on 10.12.2019. The applicant, who was not represented had then filed the judicial review by way of an originating summons. In mid March 2020, the originating summons was struck out due to the non-attendance of the applicant. [4] The applicant then filed an application to reinstate the originating summons and appointed solicitors to take over the conduct of the case. The solicitors then filed the cause papers on 13.04.2021. The applicant admitted the delay in filing the cause papers was due to the wrong interpretation of the law, as the applicant is a lay person. Deliberation on extension of time [5] The question before this court is whether this court should allow the extension of time for the applicant to file an application for leave for judicial review pursuant to Order 53 of the Rule of Court 2012. [6] Order 53 rule 3(6) of the Rules of Court states as follows: “3. (6) An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant.” [Emphasis added] 3 S/NBA-25-19-04/2021 lgxeqwUSxEumFyw/Gc4EHQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [7] Order 53 rule 3 (6) clearly states any application for judicial review must be made within three months from the date of the decision. In this case, the decision or award given by the Consumer Claims Tribunal’s award was on 10.12.2019. [8] Applying Order 53 rule 3 (6) of the Rules of Court 2012, this would mean the application for judicial review should have been made at the vary latest by 09.02.2020. This was not the case here as the applicant, acting on his own filed an originating summons which was struck out due to the non-attendance of the applicant. [9] Learned counsel for the applicant argued this court had the discretion to allow the extension of time. In this regard, learned counsel referred to the case of Tong Kin Soo v Tirai Prospektif Sdn Bhd [2019] 1 LNS 1310 where the court held: “it is always trite that the granting of extension of time was discretionary to be exercise by the judge in each particular case. The factors to be considered were: (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding; and (d) the degree of prejudice to the would be respondent if the application was granted. [See: MBF Finance Bhd v Alluwi Bin Salleh & Anor [2002] 2 CLJ 133; [2002] 1 MLJ 497]” 4 S/NBA-25-19-04/2021 lgxeqwUSxEumFyw/Gc4EHQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [10] Reference was further made to the Rules of Court 2012, in particular Order 1A which is reproduced below: “Regard shall be to justice (O. 1A) In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules” [11] Order 2 rule of the Rules of Court 2012 provides: “Non-compliance with Rules (O. 2, r. 1) 1. (1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been non-compliance with the requirement of these Rules, the non-compliance shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein. (2) These Rules are a procedural code and subject to the overriding objective of enabling the Court to deal with cases justly. The parties are required to assist the Court to achieve this overriding objective. (3) The Court or Judge may, on the ground that there has been such noncompliance as referred to in paragraph (1), and on such terms as to costs or otherwise as it or he thinks just, bearing in mind the overriding objective of these Rules, exercise P.U. (A) 12 its or his discretion under 5 S/NBA-25-19-04/2021 lgxeqwUSxEumFyw/Gc4EHQ **Note : Serial number will be used to verify the originality of this document via eFILING portal these Rules to allow such amendments, if any, to be made and to make such order, if any, dealing with the proceedings generally as it or he thinks fit in order to cure the irregularity.” [12] This court was urged to allow the application in Enclosure 1 and hear the case on the merits of the case. [13] This court takes cognizance of the provisions of Order 1A and Order 2 rule 1 of the Rules of Court. In short, this court is to consider the overriding interest of justice and not merely to technical requirements of the Rules of Court 2012. [14] The word ‘shall’ in usually perceived to mean mandatory. Prima facie the word ‘shall’ gives the connotation of a mandatory nature. However, in rules of statutory interpretation, the intention of the legislature is to be considred. [See: Sundarajan a/l Sokalingam v. Fredrick lndran a/l XA Nicholas o/b Perak Bar Committee (Malaysian Bar Council, intervener) [2015] 8 MLJ 203] NS Bindra’s Interpretation of Statutes (Ninth Edition) at page 950 states: “The ultimate rule in construing auxiliary verbs like ‘may’ and ‘shall’ is to discover the legislative intent; and the use of words ‘may’ and ‘shall’ is not decisive of its discretion or mandates. The use of the words ‘may’ and ‘shall’ may help the courts in ascertaining the legislative intent without giving to either a controlling or a determinating effect. The courts have further to consider the subject matter, the purpose of the provisions, the object intended to be secured by 6 S/NBA-25-19-04/2021 lgxeqwUSxEumFyw/Gc4EHQ **Note : Serial number will be used to verify the originality of this document via eFILING portal the statute which is of prime importance, as also the actual words employed.” [Emphasis added] [15] The Rules of Court 2012 sets out the procedures which a party is required to adhere to. In this way, this court is of the view that the Legislature’s intent is the requirements of the Rules of Court 2012 should be observed. [16] Here, the application pertains to judicial review. This entails the decision of the executive or administrative body is being challenged. In such a circumstance, this court opines that strict adherence to timelines are important. For these reasons, this court is of the view the word ‘shall’ in Order 53 rule 3(6) is to be observed strictly. [17] The subsequent question therefore is what are the principles of law pertaining to the abridgement of time in cases of judicial review? Order 53 rule 3(6) specifically states the application for judicial review is to be made within three months from the date of the decision. Does the word ‘shall’ in Order 53 rule 3(6) connote a mandatory requirement? [18] Order 53 rule (7) of the Rules of Court 2012 provides that the court may extend the time specified in rule 3 (6) if the court considers there is a good reason for doing so. 7 S/NBA-25-19-04/2021 lgxeqwUSxEumFyw/Gc4EHQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [19] Do the facts in this case give this court a good reason to extend the time to make an application for judicial review? What are the facts before this court? [20] The award was made by the Consumer Claims Tribunal on 10.12.2019. The applicant then filed the application for judicial review by way of an originating summons. It was not stated in Enclosure 3, the affidavit in support of Ng Sook Huey when this application by the applicant was made. [21] Due to the Corvid 19 pandemic which engulfed the country in mid- March 2020, the originating summons was struck out due to the non- attendance of the applicant. Here, this court observes the exact date the originating summons was struck out was not stated by the applicant in Enclosure 3. [22] The applicant then filed an application to reinstate the originating summons. Exhibit NSH-1 of Enclosure 3 is the application to reinstate the originating summons which was struck off by the court due to the non- attendance of the applicant. It has come to this court’s observation that Exhibit NSH-1 of Enclosure 3 states the date the originating summons was struck out as 21.7.2020. Exhibit NSH-1 states the hearing date of the reinstatement as 6.10.2020. [23] Subsequently, the applicant realized the wrong mode was employed and hence the applicant appointed a solicitor to take conduct of this matter. 8 S/NBA-25-19-04/2021 lgxeqwUSxEumFyw/Gc4EHQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [24] Before this court, there is no evidence when the solicitors were appointed by the applicant. This application for extension of time to file a judicial review application was made on 13.04.2021. [25] In the view of this court, there are details which have not been made available to this court. These details include when the solicitors were appointed to take over the conduct of the matter. This is pertinent information for the court to decide whether to allow the application for the extension of time to file the judicial review. [26] The application in Enclsoure 1 was made on 13.04.2021. The application to reinstate was fixed for 6.10.2020. There appears to be a lacuna between the dates of 6.10.2020 and 13.04.2021. There is no explanation as to what transpired between 6.10.2020 and 13.04.2021 other than the fact that solicitors took conduct of the matter and filed the application on 13.04.2021. [27] This dearth of information, in the view of this court, has resulted in this court to be unable to consider whether there is good reason for this court to allow the extension of time as provided by Order 53 rule (7). [28] Furthermore, this application relates to a judicial review. In this regard, this court alluded to the case of Mersing Omnibus Co Sdn Bhd v The Minister of Labour & Manpower & Anor [1983] 3 CLJ (Rep) 266 where the court held: “We took the point ourselves as it clearly goes to the jurisdiction of the Court from which leave to apply for certiorari was sought as O.53 r.1(1) stipulates that no application for 9 S/NBA-25-19-04/2021 lgxeqwUSxEumFyw/Gc4EHQ **Note : Serial number will be used to verify the originality of this document via eFILING portal an order of certiorari shall be made unless leave therefore has been granted and r.1A which we have already adverted to enacts that leave shall not be granted except in accordance with its specific provisions. Lord Hodson said in this judgement in Secretary of State of Defence v Warm [1970] AC 934, 402 9at Pemohon402): “Procedural sections are usually mandatory and there is nothing which points to the contrary in this case.” [Emphasis added] [29] In the case of Pengarah Kastam Negeri Johor & Anor v Kedai Makan Kebun The (Sutera Utama) Sdn Bhd & Ors and Anor Appeal [2014] 3 CLJ 733, the Court of Appeal had held: “[10] On the matter of strict observance of the requirements of O. 53, with respect, we need only to refer to the case of Ahmad Jefri Mohd Jahri v. Pengarah Kebudayaan & Kesenian Johor & Ors [2010] 5 CLJ 865; [2010] 3 MLJ 145. That case had stated clearly the rationale for the strict compliance of the express requirements of O. 53. The apex court in that case, through the judgment of the learned Justice James Foong FCJ had this to say: The stringent conditions imposed by O. 53 of the RHC are intended to protect those entrusted with the enforcement of public duties against groundless harassment and to reduce delays in resolving applications in the interest of good administration. In the instant case, the appellant was clearly handicapped, inter alia, through limitation of time, in 10 S/NBA-25-19-04/2021 lgxeqwUSxEumFyw/Gc4EHQ **Note : Serial number will be used to verify the originality of this document via eFILING portal applying for judicial review under O. 53 r. 3(6) of the RHC. Order 53 of the RHC sets out a specific procedure for an aggrieved party seeking relief against a public authority concerning an infringed right protected under public law. When such an explicit procedure is created, then as a general rule all applications for such relief must adhere to the procedure prescribed under O. 53 of the RHC, failing which the applications would be liable to be struck off for abuse of the process of court. [11] The courts have been consistent in pursuing this approach as could be seen in the decision of the Court of Appeal in the case of Menteri Besar Negeri Pahang Darul Makmur v. Seruan Gemilang Makmur Sdn Bhd [2010] 5 CLJ 123. In fact, in Seruan Gemilang (supra), it was stated by Justice Zaleha Zahari JCA (as she then was) that "compliance with the time frame prescribed by the rules is fundamental as it goes to jurisdiction." Thus the need for rigid adherence to the express dictates of O. 53 of the RHC 1980.” [Emphasis added] Conclusion [30] Order 53 rule (7) of the Rules of Court 2012 allows this court the discretion to extend the time specified in rule 3 (6) if this court considers there is a good reason to do so. In this application for extension of time to file an application for judicial review, this court finds no good reason to allow this application. There were questions as to when the solicitors were appointed which would have a bearing on when the application in Enclosure 1 was filed. Had the solicitors taken conduct of the matter and 11 S/NBA-25-19-04/2021 lgxeqwUSxEumFyw/Gc4EHQ **Note : Serial number will be used to verify the originality of this document via eFILING portal immediately filed Enclosure 1? Why was that piece of information missing? [31] The applicant had stated he was a lay man which did not know the law and hence there was a mistake in the filing the application prior to the appointment of solicitors. In the view of this court, the maxim ignorance of the law is no excuse applies here. [See: Ali Amberan v Tunku Abdullah [1970] 4 MC 113; Germilang Mirza Sdn Bhd & Ors v Public Prosecutor [2013] MLJU 522] [32] Additionally, this court is mindful that this relates to a judicial review application. This court is guided and bound by the decisions of the appellate courts which have stated stringent conditions imposed by the Rules of Court 2012 for judicial review applications is intended to protect those entrusted with the enforcement of public duties form groundless harassment. [33] For the mentioned afore reasons, this court dismisses this application [Enclosure 1] with costs of RM 500.00. Date: 26 May 2022 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam 12 S/NBA-25-19-04/2021 lgxeqwUSxEumFyw/Gc4EHQ **Note : Serial number will be used to verify the originality of this document via eFILING portal +Counsel: For The Applicant: Pang Teck Yaw Tetuan Kannan Ratnam Advocates & Solicitors No. 216, Jalan SS19/6A, 47500 Subang Jaya, Selangor. k_kay13@hotmail.com +6 018 381 3385 For the Respondent: SFC Norazalina bintiRazali Kamar Penasihat Undang-Undang Negeri Selangor Darul Ehsan Ting. 4, Podium Utara, Bangunan Sultan Salahuddin Abdul Aziz Shah, 40512 Shah Alam, Selangor. +6 03 5544 7183 13 S/NBA-25-19-04/2021 lgxeqwUSxEumFyw/Gc4EHQ **Note : Serial number will be used to verify the originality of this document via eFILING portal